The Arabist

The Arabist

By Issandr El Amrani and friends.

In Translation: How Egypt's constitution will be amended 2/2

This is the second of two translated articles selected from the Egyptian press on the process of amending Egypt's 2012 constitution, which according to Interim President Adly Mansour's Constitutional Declaration (CD) of July 8 will be amended and put to a referendum before new elections are held. This first article is an interview with Mansour's constitutional advisor, the second article contains possible amendments being considered. Both are translated by our long-standing partner, the most excellent Industry Arabic. Please give them translation jobs, you won't be sorry and you'll help them help us continue to provide this free service.

As explained, a committee of 10 scholars and judicial figures is now tasked with drafting amendments to Egypt's 2012 constitution. The dominant group backing the July 3 coup, composed of secular political forces, is likely to push for the reversal of the Islamization of the country's constitution carried out in 2012 by an alliance of Muslim Brothers and Salafists that dominated the Constituent Assembly then in charge of the process of drafting a new constitution. The lack of agreement between Islamists and secularists on a constitution, indeed, was a major catalyst for the current crisis. The tricky part is that the only major Islamist force that backed the coup, the Nour Party, was even more attached to the Islamist provisions in the constitution than the Brotherhood. Its rejection of the new amendments could undermine its support for Morsi's overthrow, and more generally push Islamists of all stripes into the Brotherhood camp in the name of saving Islam's role in the constitution.

This is why the article below – only a speculation, mind you, into what is being envisaged, published in the rather taboid and anti-Islamist Youm 7 newspaper – is interesting. As might be expected from a judicial source (in Egypt the judiciary, while conservative, has generally defended the modernist idea of judicial review and much leeway for judicial interpretation of Sharia, rather than its strict codification as  the 2012 constitution tended to lean towards, with a major role for theologians to, in effect, veto legislation)  it tends towards the stripping of many of the parts of the 2012 constitution Islamists were most attached to. Most notably those that introduced notions such as formal oversight by theologians, notions that Salafis embrace such as the "enjoining of good and prevention of vice", and stress on the state's role in regulating public morality. If it is representative of the changes to come, one can expect a major Islamist backlash in the weeks ahead.

Full text ahead.


We are publishing the text of controversial articles in the 2012 Constitution: the article on Islamic Sharia, the formation and powers of "senior religious scholars," texts on the state protecting [public] morals and the character of the Egyptian family, "constitutionality," exclusion and practicing religious rites.

The editors, Youm 7, 21 July 2013

A Youm7 exclusive: Egypt's interim president Adly Mansour has issued a presidential decree to form a committee of experts to revise the 2012 constitution, which will commence work starting Sunday [21 July] at the Shura Council headquarters and conclude its task within 30 days from the date the decree was issued [i.e. by 19 August].

Constitutional advisor to the president Counselor Awad Saleh has said that the decree stipulates the formation of a general technical secretariat for the committee to assist the committee's ten members, and that the committee's rapporteur shall be the president's constitutional advisor. This means that the committee does not have a chairman, but rather that all its members are peers working on the basis of consensus and complete cooperation.

A source in the judiciary said that one of the committee's most important priorities is amending controversial articles, particularly:

Article 4: "Al-Azhar's Council of Senior Scholars shall be consulted on issues related to Islamic Sharia." This was one of the most controversial articles, since according to critics, the text of the draft constitution with regards to consulting Al-Azhar’s Council of Senior Scholars on issues related to Islamic Sharia is reminiscent of Vilayet-e Faqih in Iran. It also takes away some of the parliament's legislative powers and the judiciary's power to apply the law. This view is backed by constitutional jurist Yahya al-Gamal, who believes that this article "creates a clerical authority."

Article 10: "Family is the basis of society and is founded on religion, ethics and patriotism. The state and society shall maintain the authentic character of the Egyptian family, and to work on its cohesion, stability and protection of its traditions and moral values, as regulated by law." The main cause for opposition is that the article opens the doors for religious currents and organizations for the promotion virtue and prevention of vice to interfere at the heart of society.

Article 11: " The State shall safeguard ethics, public morality and public order, and foster a high level of education and of religious and patriotic values, scientific thinking, Arab culture, and the historical and cultural heritage of the people, as shall be regulated by law." Critics maintain that this article's stipulation that the state safeguard ethics will most likely cause personal freedoms to be violated and it provides the constitutional basis for a law that deprives citizens of certain rights on the pretext of public morality. They also criticize this article because it takes an ambiguous doctrinal ruling and turns it into a requirement or basis for legislation.

Article 43: "Freedom of belief is an inviolable right. The State shall guarantee the freedom to practice religious rites and to establish places of worship for the divine religions, as regulated by law." The controversy over this article arises from its exclusionary character that is inconsistent with the principle of religious freedom, since it only guarantees freedom for what are known in Egypt as the three divine religious – Judaism, Christianity and Islam – and does not allow Egyptian legal precedent and the prevailing interpretation of legislation to categorize other religious groups as "divine." Small minorities such as the Baha'i remain deprived of legal protection.

Article 44: "Insult or abuse of all religious messengers and prophets shall be prohibited." The reason here is that some believe that this new article is ambiguous and may lead to freedoms being curtailed. They say that it is unclear what exactly constitutes "insult" or "abuse," what institution or individuals will be responsible for deciding this matter, and how incidents of abuse will be prevented. 

Articles relating to the President of the Republic: Various articles in the constitution lay out the powers of the president. The president is the head of the executive branch (Article 132), he shall choose the prime minister (139), he shall set the general policy of the state (140), he is the one responsible for defense, national security and foreign policy, he shall preside over the government meetings that he attends (143), he shall conclude international treaties (145), he is the commander-in-chief of the armed forces (146), he shall appoint and dismiss civilian and military employees (147), he has the power to declare states of emergency (148), pardon and commute sentences (149), and place a referendum before the people (150), he appoints 10% of the members of the Shura Council (129), appoints the members of the Supreme Constitutional Court (176) and appoints the heads of oversight bodies after approval by the Shura Council, and he presides over the National Security Council (193).

Critics claim that these articles constitute a foundation for authoritarian rule, as the president gets to "keep all the powers of the president in the 1971 Constitution and is furthermore given the power to appoint the heads of the oversight bodies and agencies that are overseeing him." This is the view of constitutional law professor Jaber Nassar, who withdrew from the Constituent Assembly, as he believes that the powers of the president were expanded to an unnatural degree in the draft constitution, swelling to 22 articles with the addition of 10 articles that include new powers not granted in previous constitutions.

Article 219: "The principles of Islamic Sharia include its holistic evidence, fundamental doctrines, Islamic jurisprudence doctrines, and acknowledged sources accepted within the schools of the people of al-Sunna and Jamaa.” This article is meant to interpret Article 2, which stipulated that Islam is the religion of the state. The objection here is that never in the history of constitutions in the world has an article been placed in a constitution to interpret another article.

One of the most prominent opponents of this article, Dr. Jaber Nassar, explained that this article would lead to severe crises, since the Egyptian legal system borrows from different legal systems, and it opens up the door for many Islamic sects.

Articles on freedom of the press: Several objections were made to articles pertaining to the press, especially Article 48, which stipulates that "Freedom of the press, printing, publication and mass media shall be guaranteed. The media shall be free and independent to serve the community and to express the different trends in public opinion, and contribute to shaping and directing it in accordance with the basic principles of the state and society, and to maintain rights, freedoms and public duties, respecting the sanctity of the private lives of citizens and the requirements of national security. The closure or confiscation of media outlets is prohibited except through a court order. Censorship of the media is prohibited, with the exception of specific censorship that may be imposed in times of war or public mobilization."

One of the main reasons for objections to articles on the freedom of the press is that there is no text that bans imprisonment for crimes of publication, and because "requirements of national security" is undefined.

Article 35: "Except in cases of flagrante delicto, no person may be arrested, searched, detained, prevented from free movement or suffer any other restriction of freedom except by a court order necessitated by investigation. Any person arrested or detained must be informed of the reasons in writing within 12 hours, be presented to the investigating authority within 24 hours from the time of arrest, be interrogated only in the presence of a lawyer, and be provided with a lawyer when needed. The person arrested or detained, and others, have the right to appeal before the judiciary against the measure. If a decision is not provided within a week, the person must be released. The law regulates the rules, duration and grounds for preventive detention, and cases of entitlement to compensation, whether for preventive detention or for execution of sentence that a court's final ruling has overturned." [The Arabic original contains no description of arguments regarding this article.]

Articles pertaining to the Armed Forces: Articles pertaining to the Armed Forces have faced several objections, in particular Article 198, which stipulated that "Civilians shall not stand trial before military courts except for crimes that harm the Armed Forces. The law shall define such crimes and determine the other competencies of the Military Judiciary." The objection here is that this contradicts Article 75, which stipulates that "No person shall be tried except before their natural judge." Many parties and movements are opposed to these articles, including the Strong Egypt Party.

Articles pertaining to the Constitutional Court: The Democratic Front Party believes that constitution articles 176, 177 and 178 reduce the powers of the Constitutional Court, especially Article 176, which stipulates that "The Supreme Constitutional Court is made up of a president and ten members. The law shall indicate the judicial or other bodies that shall nominate them and regulates the manner of their appointment and the requirements to be met. Appointments shall take place by a decree from the President of the Republic." The number of members of the Supreme Constitutional Court is thereby reduced from 18 to 11, and they are appointed by the president. According to critics of the articles, this constitutes an assault on the general assembly of the court and eliminates the independence of the highest level of the judicial branch.

Article 70: "Child labor is prohibited before the age of compulsory education is passed, in jobs that are not fit for a child’s age, or that prevent the child from continuing education." It is claimed that this article violates the International Conventions of the Rights of the Child. Among the most prominent opponents of this article are the Egyptian Association for the Assistance of Juveniles and Human Rights and the Democratic Front Party, as the party calls for child labor to be banned outright.